Issuing "Radio" Compulsory Licences in the Wake of a "Mirchi" Controversy

As expected, a writ petition has been filed challenging the legality of the appointment of the current chairman of the Copyright Board, Raghbir Singh. This came up before Justice Sikri of the Delhi High Court yesterday and notices have been issued.

We’ve been dealing with this controversial appointment in several earlier blog posts. In one of these posts, I had questioned his eligibility on the ground that he was 66 years old at the time of his appointment and therefore not suited to hold the office of Chairman of the Board. The Copyright act provides (interalia) that the chairman should be a person eligible to be appointed as a High Court judge.

Eligibility criteria for high court judges find mention in Article 217 of the Constitution of India, under which a judge must necessarily retire at the age of 62. I took this to mean that no person above the age of 62 could be appointed a High Court judge. And since Mr Singh was 66 at the time of his appointment, he was not eligible to be a High Court judge. And therefore not eligible to be appointed as Chairman of the Copyright Board as well. Well, it now turns out that I was wrong.

Courts have consistently held that the retirement age of a High Court judge as stipulated in the Constitution cannot necessarily be construed as an “eligibility” criterion. I quote extracts from a recent ruling (State of Uttaranchal vs Balwant Singh), where the Supreme court approved of the ruling by a division bench of a high court as below:

“The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court “shall hold office until he attains the age of 60 years” (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years).

The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor.

This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words “until he attains the age of sixty years”. The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217.”

and later:

“In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken the similar view.”

and still later:

“The controversy raised by the petitioner in this case was decided 58 years ago in the judgment of Karkare (supra) which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office.”

Even assuming Mr Singh’s appointment is held illegal or irregular on some ground, this will not, by itself, vitiate the proceedings of the Copyright Board. As mentioned earlier, under the de facto doctrine and the doctrine of necessity, courts are likely to uphold the validity of the proceedings, notwithstanding any irregularity in the appointment of members adjudicating the dispute/proceedings.

As and when we lay on our hands on the text of this writ petition, we’ll bring you more details. In the meantime, the grapevine has it that 81 licences have already been issued to about 4-5 radio stations (including Radio Mirchi) to cover different zones throughout India. These licences have been issued pursuant to the copyright board order stipulating that such licences be issued subject to a 2% royalty rate.

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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